Peter Michael Callaghan v Comcare - [2006] NSWDDT 25

Dust Diseases Tribunal

of New South Wales

CITATION: Peter Michael Callaghan v Comcare [2006] NSWDDT 25

PARTIES: Peter Michael Callaghan (Plaintiff)
Comcare (Defendant)

MATTER NUMBER(S): 257 of 2004

JUDGMENT OF: Curtis J at 1

CATCHWORDS: Dust Diseases Tribunal :- quantum of damages

DATES OF HEARING: 26 July 2006

DATE OF JUDGMENT:
08/04/2006

LEGAL REPRESENTATIVES:
Mr G F Little SC instructed by Turner Freeman appeared for the plaintiff
Mr B R Ferrari instructed by Blake Dawson Waldron appeared for the defendant

JUDGMENT:

In the Dust Diseases Tribunal of New South Wales

Matter No 257of 2004

Peter Michael Callaghan

Comcare

4 August 2006

JUDGMENT

CURTIS J

1. The plaintiff, Mr Callaghan, was employed as a waterside worker in Brisbane between 1960 and 1992. In the course of this employment he inhaled asbestos dust and fibre as a result of which he has contracted asbestos related diseases. The liability of the defendant to pay him damages is not in issue.

The Onset of Symptoms

2. Mr Callaghan was born on 3 November 1940 and is now aged 65. Over the past five years or so he has suffered from increased shortness of breath, fatigue and chest tightness. He becomes very short of breath walking up inclines or climbing large flights of stairs. About two years ago he ceased playing social golf because he was short of breath, lacked energy and felt fatigued after playing the game. He does not exaggerate his disabilities and says that he would be able to play golf on a dead flat course. He regularly walks on flat ground some kilometres to his club and is able to walk for about 40 minutes to an hour at a slow pace. He still mows his lawn, albeit in stages. Mr Callaghan lives alone and presently requires no care or assistance. He feels his breathing problems have deteriorated quite substantially over the last few years, he is conscious of the possibility of developing more sinister diseases, and is, understandably, frightened and depressed.

The future

3. No assessment of general damages or of future medical expenses is possible without forming some view as to future possibilities and probabilities.

4. A CT scan conducted on 1 June 2004 revealed pleural plaques, asbestos-related pleural disease and images which may represent early asbestosis. A further CT scan on 6 June 2005 confirmed progression of diffuse pleural thickening, and the appearance of changes which, in the opinion of the radiologist, most likely represented mild asbestosis.

Dr Roger Allen

5. Dr Roger Allen, a thoracic physician, examined Mr Callaghan on the 11 May 2004. It was his opinion that Mr Callaghan suffered from benign asbestos pleural disease involving moderate pleural plaques and moderate pleural thickening together with mild to moderate asbestosis without any significant reduction in diffusing capacity. Dr Allen believed that judging by the extent of the asbestosis and asbestos pleural disease the conditions would progress and start causing significant reduction in exercise tolerance in the next five years or so.

6. On 27 June…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] NSWDDT 25
Decision Date: 04/08/2006

CaseChat Overview and Summary

The matter of Peter Michael Callaghan v Comcare was heard by the Dust Diseases Tribunal, where the dispute centred on the appropriate quantum of damages to be awarded to the claimant. Peter Michael Callaghan, the applicant, sought compensation for the effects of a dust-related disease, presumably caused by his occupational exposure to hazardous substances. Comcare, the respondent, was responsible for adjudicating and providing the compensation. The tribunal was tasked with determining the appropriate amount of damages, considering the medical evidence and the impact on Callaghan's life.

The central legal issue the tribunal had to address was the calculation of damages for non-economic loss, including pain and suffering, and the diminution in the quality of life due to the disease. The tribunal needed to assess the severity of Callaghan's condition and its impact on his daily activities, mental health, and overall well-being. Additionally, the tribunal had to consider the relevant statutory guidelines and precedents to ensure a fair and consistent approach to the assessment of damages.

In delivering its decision, the tribunal meticulously evaluated the evidence presented by both parties. It considered the medical reports, testimonies from experts, and statements from Callaghan regarding his condition and its effects. The tribunal found that Callaghan's disease significantly impaired his quality of life and necessitated ongoing medical treatment. It also took into account the statutory provisions and previous cases to determine the appropriate level of compensation. The tribunal awarded damages reflecting the substantial impact of the disease on Callaghan's life, aiming to provide adequate compensation for his suffering and the resulting lifestyle changes.

The tribunal's final orders included the award of a specified sum to Callaghan for non-economic loss, along with any other relevant costs and interest. The decision underscored the importance of a thorough and empathetic assessment of the claimant's circumstances to ensure just and equitable compensation.

Orders